This Court has no power to review a judgment of the Superior
Court of the Kentucky unless it appears not only that the judgment
is one of the class in which the statute of that state provides
that the judgment
Page 122 U. S. 523
of that court may be final, but also that an application was
made within proper time for an appeal to the Court of Appeals, and
that the application was refused by the Superior Court.
This is a writ of error to the Superior Court of the State of
Kentucky for the review of a judgment of that court, and the
defendant, although uniting with the plaintiff in submitting the
case for hearing on its merits, has moved to dismiss the writ for
want of jurisdiction because the Superior Court is not the highest
court of the state in which a decision in the suit could be had.
The record shows a suit by W. H. Perkins against James H. Fisher in
the Circuit Court of Daviess County for the recovery of money, and
a judgment therein for Fisher. Afterwards this judgment was
reversed by the Court of Appeals of the state and the cause
remanded for further proceedings. When the case got back to the
circuit court, additional pleadings were filed and a trial had
which resulted in a judgment in favor of Perkins for less than
$1,000. From this judgment Fisher appealed to the Court of Appeals.
Before this appeal was decided, the Superior Court of the state was
organized, and the case was transferred, in due course of law, to
that court for decision.
Those parts of the act establishing the Superior Court which
relate to the appellate jurisdiction of the Court of Appeals for
the review of its judgments are as follows:
"§ 5. The Court of Appeals shall have appellate jurisdiction
over the final orders and judgments of the Superior Court in all
cases except the following:"
"1. Those for fines or for the recovery of money or personal
property where the amount of the fine, or the value in controversy,
is less than one thousand dollars, exclusive of interest and costs;
2. those where the judgment of the lower court had been affirmed by
the Superior Court without a dissenting vote. But if, in any case
coming within either of the above exceptions, any two of the judges
of the Superior Court shall certify that, in their opinion, the
question involved is novel, and is one of sufficient importance,
the party against whom the decision was rendered shall be entitled
to take the same by appeal to the Court of Appeals as in other
cases. "
Page 122 U. S. 524
"§ 6. If an appeal shall be taken to the Court of Appeals of
which the Superior Court has jurisdiction, or if taken to the
Superior Court when the Court of Appeals has jurisdiction, it shall
not be dismissed, but shall be transferred to the court having
jurisdiction."
"§ 7. All appeals from the Superior Court to the Court of
Appeals shall be prayed and granted in the Superior Court. But no
appeal shall be granted after six months from the time the right to
appeal first accrued unless the party applying therefor was a
defendant in the original action, and an infant not under
coverture, or of unsound mind, or a prisoner who did not appear by
his attorney, in which cases an appeal may be granted to such
parties on their representatives within twelve months after their
death, or the removal of their disabilities, whichever may first
occur."
Acts 1881, p. 113.
The judgment of the circuit court was affirmed by the Superior
Court "without a dissenting vote," and for the review of that
judgment of affirmance this writ of error was brought, no
application having been previously made to the Superior Court for
the allowance of an appeal to the Court of Appeals.
Page 122 U. S. 525
MR. CHIEF JUSTICE WAITE, after stating the case as above
reported, delivered the opinion of the Court.
This Court has no power to review any other judgment of the
courts of a state than those of the highest court "in which a
decision in the suit could be had." § 709, Rev.Stat. The Court of
Appeals is the highest court of the State of Kentucky, and
consequently, until it has been made to appear affirmatively on the
face of the record that a decision in this suit could not have been
had in that court, we are not authorized to review the judgment of
the Superior Court. Although the value in controversy is less than
$1,000, and the judgment of the inferior court was affirmed by the
Superior Court without a dissenting vote, an appeal did lie to the
Court of Appeals if two of the judges of the Superior Court
certified that, in their opinion, the question involved was novel
and of sufficient importance. To get an appeal from the Superior
Court in any case, an
Page 122 U. S. 526
application therefor must be made to and granted by that court.
Such is the express provision of § 7 of the act under which the
court was organized. Certainly it would not be claimed that a
judgment of the Superior Court could be reviewed by this Court in a
case not within the exceptions mentioned in § 5, before an
application had been made in proper time for the allowance of an
appeal, and the application refused for some sufficient reason. It
is true that in this particular case, the prayer for an appeal
could not have been granted unless the necessary certificate was
given, but if given, it would have been as much the duty of the
court to make the order of allowance as it would if the value in
controversy had exceeded $1,000, or the judgment of affirmance had
been with a dissenting vote. Such a certificate enters into and
forms part of the allowance of an appeal in a case like this, and
an application for the allowance necessarily includes an
application for the certificate, unless it has been obtained
before, because the certificate is one of the ingredients of an
allowance. The want of a certificate is good reason for refusing to
allow an appeal, but until it has been asked for and refused its
absence furnishes no ground for a writ of error from this
Court.
The principle on which this case rests is illustrated by what
was decided in
Gregory v.
McVeigh, 23 Wall. 294. In Virginia, the Supreme
Court of Appeals is the highest court of the state. Judgments of
the Corporation Court of Alexandria can only be taken there for
review on leave of the Court of Appeals itself, or some judge
thereof. Gregory, against whom a judgment had been rendered in the
corporation court, applied to each and every one of the judges of
the Court of Appeals for a writ of error, but his applications were
all rejected because the judgment was "plainly right." This, by a
statute of Virginia, was a bar to any application to the court for
the same purpose, and Gregory thereupon sued out a writ of error
from this Court to the corporation court, as the highest court of
the state in which a decision in the suit could be had. Upon a
motion to dismiss, we upheld our jurisdiction, because everything
had been done that could be to take the case to the
Page 122 U. S. 527
Court of Appeals, and its doors had "been forever closed against
the suit, not through neglect, but in the regular order of
proceeding under the law governing the practice." Had the court
itself refused the leave upon an application for that purpose, its
refusal would have been equivalent to a judgment of affirmance,
which could have been reviewed in this Court; but as in the regular
course of proceeding that had been done which prevented either a
review of a judgment of the Court of Appeals or an application to
that court for a writ of error, the judgment of the corporation
court had become the judgment of the highest court of the state in
which a decision in that suit could be had, and consequently was
reviewable here as such.
So here, if an application to the Superior Court for an appeal
had been refused, the doors of the Court of Appeals would have been
closed against the suit, and we could have proceeded accordingly.
As it is, we find nothing in the record to show that the suit could
not have been taken to the Court of Appeals if the necessary
application had been made, and consequently we have no right to
proceed. It matters not that the judgment of the Superior Court is
in accordance with what was decided by the Court of Appeals on the
former appeal. The judgment is still the judgment of the Superior
Court, which is not the highest court of the state, and it might
have been taken to the Court of Appeals for review if the grant of
an appeal had been applied for and secured.
McComb v.
Commissioners of Knox County, 91 U. S.
1;
Kimball v. Evans, 93 U. S.
320;
Davis v. Crouch, 94 U. S.
514,
94 U. S. 517.
We are not to assume that an appeal would not have been granted if
applied for. The record must show its refusal.
The motion to dismiss is granted.
